72 Conn. App. 683 | Conn. App. Ct. | 2002
Opinion
Arthur O. Klein and Diane L. Klein, the defendants in each of two related cases, one a fraudulent transfer action and the other an interpleader action,
These appeals and cross appeals arise out of several complex and interrelated cases. The origin of the disputes lies in the short-lived merger of two law firms specializing in intellectual property law. Collard and Roe, a New York firm, and Klein & Vibber, P.C. (Klein & Vibber), a Connecticut firm in which the defendant Arthur Klein is a partner, merged in 1990. By the summer of 1991, however, the two firms parted ways following disputes over how certain fees and profits were to be divided between the firms. Collard and Roe subsequently filed an action against Klein & Vibber in a New York court, claiming misappropriation of approximately $70,000 in fees. Although Klein & Vibber initially appeared in the action and filed an answer and counterclaims, the firm failed to appear at trial and was defaulted. On February 28, 1997, Collard and Roe obtained a judgment against Klein & Vibber in the amount of $97,921, which included damages, interest and costs. Klein & Vibber unsuccessfully appealed from that judgment through the New York appellate system,
Collard and Roe thereafter domesticated the New York judgment in Connecticut pursuant to the Uniform Enforcement of Foreign Judgments Act, General Statutes § 52-604 et seq.
While those proceedings were taking place, the Kleins entered into a contract to sell the 391 North Main Street property to Kirk Straight and Nicole Straight. Because of Collard and Roe’s judgment lien on the property, the Straights’ title insurance company, First American Title Company (First American), agreed to insure the title only on the condition that $150,000 of the sale proceeds be held in escrow. Pursuant to an agreement among all
Thereafter, because there were multiple claimants to the escrow funds, Rockwell and Laux brought the interpleader action and deposited the funds with the court for a determination of how they should be dispersed. See footnote 1. Relying on the referee’s findings in the fraudulent transfer action, the court, in a separate December 12, 2000 memorandum of decision, concluded that the funds should be dispersed as follows: (1) $10,000 to the Straights’ attorney; (2) $124,809.88 to Collard and Roe in satisfaction of its judgment lien, with interest continuing to accrue at a per diem rate of $19.58, provided that Collard and Roe withdraw its foreclosure action and its action to enforce the foreign judgment; and (3) the remaining balance to the Kleins. These appeals and cross appeal followed.
Among the numerous other claims they have raised on appeal, the Kleins argue that they never consented to have the fraudulent transfer action heard before a referee and, therefore, the court’s referral was improper. We agree.
In Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986), our Supreme Court held that General
The court referred the fraudulent transfer action to the referee on January 12, 2000, citing § 52-434 (a) and Practice Book § 19-2A as the basis for its action. Implicit in the court’s referral, therefore, is a finding that the parties had consented thereto. A court’s determinations as to litigants’ consent in proceedings are findings of fact to which we must defer unless they are clearly erroneous. See Stein v. Hillebrand, 240 Conn. 35, 47, 688 A.2d 1317 (1997); State v. One 1987 Chevrolet Camaro, 23 Conn. App. 724, 726, 584 A.2d 477 (1991).
On December 6, 1999, notice had been posted on the trial assignment list that the fraudulent transfer case would be heard before a referee on January 12, 2000. On January 11,2000, the Kleins filed a written “objection to the assignment of the case for trial before an attorney trial referee,”
The Kleins resubmitted their January 11, 2000 objection on March 17, 2000,
The plaintiff argues instead that because the Kleins did not object to the reference until January 11, 2000, they had impliedly consented thereto. It claims that at that point, the court then had discretion to refuse to revoke that reference, which it properly did. The plaintiff cites our Supreme Court’s holding in Bowman v. 1477 Central Avenue Apartments, Inc., supra, 203 Conn. 246, and this court’s holding in Stamford v. Kovac, 31 Conn. App. 599, 626 A.2d 792 (1993), rev’d on other grounds, 229 Conn. 627, 642 A.2d 1190 (1994), in support of its argument.
In Bowman, the court held that parties “are deemed to have given their implicit consent to the referral by failing to raise their objection in a timely fashion.” Bowman v. 1477 Central Avenue Apartments, Inc., supra,
In Kovac, we noted, citing Bowman, that an objection to a reference made on the date a hearing was to commence was timely, but concluded that under the circumstances of the case, the defendant’s claimed objection really was a request to revoke a reference to which the defendant earlier had consented, which request the court properly refused. Stamford v. Kovac, supra, 31 Conn. App. 603-604. In that case, however, “the matter had been previously scheduled several times [over the course of the prior year] for trial before an attorney trial referee with the consent of the parties, only to be continued to a later date, and . . . the objection was made on the date of trial after the court had ordered no further postponements.” Id., 604.
In this case, we conclude that the Kleins timely objected pursuant to Bowman, because, according to the court’s file and docket entry, the case was not actually referred until January 12, 2000, the date of the hearing. Further, unlike in Kovac, notice that the matter would be scheduled for a hearing before a referee was issued for the first time on December 6, 1999, and there is nothing in the record indicating that the Kleins, either explicitly or implicitly, consented thereafter. In fact their filings to the court following the December 6,1999 notice suggest quite the opposite.
The judgments are reversed and the cases are remanded for new trials.
In this opinion the other judges concurred.
“The purpose of an interpleader action is to bring all adverse claimants together in a single action for an adjudication of all matters in controversy-related to a particular fund to which the adverse claimants seek entitlement. ” Millman v. Paige, 55 Conn. App. 238, 241, 738 A.2d 737 (1999), citing 2 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 263, p. 1088; see also General Statutes § 52-84.
The other defendants are Kirk Straight, Nicole Straight and First American Title Company. They, too, filed a cross appeal, but withdrew it at oral argument before this court. The plaintiffs are attorneys Charles D. Rockwell and Michael A. Laux, who brought the interpleader action seeking a determination as to how they should distribute funds deposited with them as escrow agents among the various defendants. Rockwell and Laux are not parties to the appeal. To avoid confusion, we will refer to all of the parties by name.
General Statutes § 52-605 (b) provides in relevant part that if a judgment creditor files a certified copy of a foreign judgment, along with certain other information, in a Connecticut court, that judgment “shall be treated in the same manner as a judgment of a court of this state . . . [having] the same effect and [being] subject to the same procedures ... for reopening, vacating or staying as a judgment of a court of this state and [the judgment] may be enforced or satisfied in like manner.”
The objection is dated January 10, 2000.
The same italicized statement was included in the Kleins’ motion to reargue an earlier order of the court, which motion was filed on January 11, 2000, and denied by the court on January 12, 2000.
The resubmission appears to be a photocopy of the earlier objection, bearing the date January 10, 2000. See footnote 4.